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Analytical Jurisprudence, ⭐️Kelsen, Kant - Coggle Diagram

- - - - Utilitarianism
        
        moral and legal theory - that the greatest good for the greatest number of people
        
        looks to the future-
        
        a socially hedonistic legal system that puts pleasure above pain
        
        it governs how human beings act AND how they ought to act
        
        the punishment of criminals is an effective mode of crime prevention because it alters the likelihood of deviant behaviour due to the possibility of future pain
      - Consequences of human action form the basis for any judgement concerning the rightness of that conduct
        
        so a morally right act will produce a good outcome
- - - - MAIN GOAL: demystifying the the common law
        
        Determinancy :fountain_pen: and Adjudication: something that controls or decides an outcome
        
        the use of determinacy
        
        laws indeterminacy affects its legitimacy and accepting this is equivalent to blind obedience
        
        Law is law because the sovereign has set it, not because it is moral
        
        determinacy is achieved by custom and precedent
        
        bentham sees this as too similar to natural law
        
        main issue is that "private opinion in disguise"
        
        Bentham and the Common Law Tradition 269
        
        "this opens the door wide for corruption"
        
        argues that stare decisis leads to greater uncertainty
        
        believes that judges use legal fictions i.e. equity- to avoid precedent
        
        Judges then use judicial discretion when that does not satisfy
        
        both of these undermine the doctrine
        
        the extent to which common law theory differs from its actual practice
        
        the court determines the legality of an act and then people adjust their behaviour to avoid the conduct the court has punished
        
        the legal rule therefore stems from what the court decides
        
        legislation applies to all people generally, but judicial orders only bind the relevant parties
        
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        Bentham believes that unwritten law cannot provide a reliable, public standard
        
        Bentham's conception of the law is profoundly functional and utilitaran
        
        Dog Law: The common law is like dog law because the common law is retroactive (applying to past) and you are never quite sure what the law requires of you until the judgement is made.
        
        You wait until someone has done something they should not do, then you hang him for it.
        
        natural rights seen as nonsense upon stilts because they block the radical reform needed for a ultilitarinist maximisation of well-being
        
        In Benthams view a law is known beforehand. this is o it can set the standard by which a persons conduct can be judged before the court
        
        Codification
        
        Customary and Common law cannot be eliminated without CODIFICATION.
        
        Would diminish the role of judges and as a result increase fairness
        
        would also enable people to understand the law without the need for lawyers
        
        principle of utility means that code would be laid out in its most logical and simplest terms
        
        Judge&Co
        
        the body of law would be based on natural and universal principles
        
        the distinction between civil and penal law would need to be addressed
        
        An Introduction to the Principles and Morals and Legislation
        
        this led to the individuation(distinguishing) of law- between an individual and the complete code
        
        what is a law and what are the contents of a complete body of the laws are questions of which neither can be answered without the other From an Intro...
        
        because not every law is criminal in its nature bentham's classifications were based on specific legal systems
        
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        similar to the difference between substantive and procedural law
    - - Security is the distinctive mark of civilisation. Bentham like Hobbes is a normative legal positivist – they are trying to explain why we should keep law separate from morality.
        
        The difference is that Bentham bases his theory on utilitarianism (the greatest good) whereas Hobbes based his theory on prudence and self-preservation.
      - Bentham argued that laws should come from the sovereign and that the central function of law is to provide security.
    - - Utilitarian & Benefit Theory
        
        An Introduction to the Principles of Morals and Legislation
        
        Principle of Utility
        
        the justification of any action (albeit the government or the individual) is to maximise happiness or to reduce unhappiness.
        
        How similar is this to Hart's benefit theory
    - - “Law is a (systematically arranged) set of commands backed by threats all of which ... can be traced directly or indirectly to a common source in the legislative acts of the sovereign whose sovereignty rests on the habit of obedience of the bulk of the community.”
      - Similar to Hobbes theory of law
      - Law requires a state that establishes the authority of the sovereign. The sovereign can be a tyrant or an elected body (parliament).
        
        did suggest that sovereign powers can be limited by "transcendent laws" --> constitutional rules
        
        Sovereign will only become law when it takes the form of legislation
        
        Also said sovereign rule will only be effective if they are subject to an outside force such as a superior court
        
        this means sovereign rule is not truly sovereign
        
        in the UK- British sovereign is the Crown and House of Lords and Commons
      - Identifies laws as mandates: Mandates can be categorised as: commands, prohibitions, non-commands and permissions
  - - - laws are commands issued by the uncommanded commander, i.e. the sovereign;
      - commands are enforced by sanctions;
        
        "the sanction of nullity".
      - a sovereign is one who is obeyed by the majority.
      - Austin says there is no reason to oblige and we only do so because we are fearful
        
        the command ordered back by a sanction that you would normally obey, as you fear for your life.
    - - Human laws
        
        Positive Laws
        
        set by sovereign or by men as political superiors
        
        Laws set by determinate body- not as political sovereign
      - Laws of God
    - - Laws by analogy
        
        laws set by indeterminate body
        
        public opinion
        
        public international law
      - This is positive morality - there is no sovereign and he does not consider it law
  - - - Primary rules govern conduct
        
        imposing obligations
        
        the majority obey primary rules because fear of punishment
        
        i.e. Criminal Law
        
        Hart does recognise that in a healthy society that many people will follow primary rules as standard behaviour
        
        3 problems with primary rules
        
        Stasis: rules stagnate and don't evolve to meet the needs of the people
        
        martial rape: R v R [1991] UKHL
        
        secondary rule can change this
        
        Inefficiency: rules of adjudication
        
        judges use their own moral codes and therefore can be bias
        
        Uncertainty : rule of recognition
        
        form of conceptual shorthand- a method of a lawmaker going into the legal system and pulling sources
        
        what if obiter becomes dicta?
      - Secondary rules provide methods by which primary rules are recognised, changed or judicially applied
        
        a rule of recognition,
        
        a rule by which any member of society may check to discover what the primary rules of the society are
        
        a rule of change
        
        by which existing primary rules might be created, altered or abolished;
        
        a rule of adjudication
        
        by which the society might determine when a rule has been violated and prescribe a remedy;
    - - Hart says that the command theory fails to adequately distinguish between the threat of the gunman and a legal system.
        
        Analytically, Austin fails to make the distinction between cohesion and law because he can’t distinguish between the gunman (Al Capone) and the sovereign.
        
        This analogy does not relfect the UK's current legal system as we have separation of powers
        
        this can be seen as a horizontal power structure instead of Austin's top down one